Citation Nr: 1417113
Decision Date: 04/16/14 Archive Date: 04/24/14
DOCKET NO. 08-29 925 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia
THE ISSUES
1. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss.
2. Entitlement to an effective date earlier than March 26, 2007 for the grant of service connection for migraine headaches.
REPRESENTATION
Appellant represented by: Kenneth Lavan
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
A.M. Ivory, Counsel
INTRODUCTION
The Veteran served on active duty from July 1992 to July 1996.
This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied reopening the Veteran's claim of service connection for bilateral hearing loss. In a September 2008 rating decision, the RO granted service connection for migraine headaches and assigned a 30 percent disability rating, effective March 26, 2007. Subsequently, in a January 2009 Notice of Disagreement, the Veteran disagreed with the effective date assigned for his service-connected migraine headaches, and claimed an earlier effective date of August 27, 1997 for this condition. Additionally, in an August 2009 rating decision, the Veteran's disability rating for migraine headaches was increased to 50 percent, effective May 11, 2009.
The Veteran was afforded a Travel Board Hearing before the undersigned Veterans Law Judge in January 2012. A written transcript of this hearing was prepared and incorporated into the evidence of record. In April 2013 and July 2013 the Veteran and his representative requested a new hearing; however, good cause was not shown for why the Veteran should be afforded a second hearing. Thus, the Board finds that the Veteran's request for a second hearing must be denied.
In June 2012 the Board remanded the issues on appeal for further development.
As noted in the June 2012 remand, on the October 2009 Substantive Appeal and at the January 2012 Travel Board hearing, the Veteran and his representative also argued that a clear and unmistakable error (CUE) existed in the August 1998 rating decision, which denied the Veteran's claim of entitlement to service connection for migraine headaches. Specifically, the Veteran's representative argued that VA incorrectly stated that the Veteran was only treated once in service for his migraine headaches.
A review of the Virtual VA paperless claims processing system does not reveal any additional records pertinent to the issues on appeal.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
After a careful review of the Veteran's claims file the Board finds that unfortunately, another remand is warranted.
In June 2012 the Board remanded the issues on appeal for further development. The Veteran's claim of entitlement to service connection for bilateral hearing loss was remanded in order for a supplemental statement of the case (SSOC) to be issued in order for the RO to consider additional evidence that was added to the Veteran's claims file. This was done in the July 2012 SSOC. Thus, the Board finds that the remand directives for bilateral hearing loss have been complied with; as the requested development has been completed, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).
The Board finds that the issues on appeal still warrant a remand in order to ensure that all of the Veteran's Social Security Administration (SSA) records are of record. According to the Veterans Benefit Management System (VBMS) SSA records were associated with the Veteran's claims file in October 2012; however, it was stated that they were on a CD and unfortunately, there is no evidence that the files on the CD had been associated with the Veteran's VBMS claims file. Under 38 U.S.C.A. § 5107(a), VA's duty to assist specifically includes requesting information from other Federal departments or agencies. Where there has been a determination that the Veteran is entitled to Social Security Administration disability benefits, the records concerning that decision are often needed by VA for evaluation of pending claims and must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Thus, on remand the RO must ensure that all of the Veteran's SSA records are associated with the Veteran's VBMS claims file.
The Board also finds that the Veteran's claim of entitlement to an effective date earlier than March 26, 2007, for the grant of service connection for migraine headaches warrants additional development. In June 2012 the Board remanded the claim of entitlement to an earlier effective date because it was inextricably intertwined with the referred issue of whether there was CUE in the August 1998 rating decision that denied entitlement to service connection for migraine headaches. The Board instructed the RO to adjudicate his CUE claim and then issue an SSOC for the Veteran's effective date claim. Instead, of separately adjudicating the Veteran's claims the RO combined them in the July 2012 SSOC and stated that the issue was whether the effective date for grant of service connection for migraine headaches was a clear and unmistakable error. The Board finds that the issue of CUE in the August 1998 rating decision that denied entitlement to service connection for migraine headaches should have been done separately and in the first instance and not combined with the Veteran's claim of entitlement to an effective date earlier than March 26, 2007 for the grant of service connection for migraine headaches. Thus, the Board finds that the RO should adjudicate the Veteran's CUE claim in a separate rating dating. Once that claim is adjudicated then the RO should readjudicate the Veteran's claim of entitlement to an effective date earlier than March 26, 2007, for migraine headaches.
Accordingly, the case is REMANDED for the following action:
1. The RO/AMC shall obtain a copy of the decision to grant or deny Social Security Administration disability benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records.
2. The RO should separately adjudication of the Veteran's referred CUE claim. After the issuance of that rating decision then the RO should readjudicate the Veteran's claim of entitlement to an effective date earlier than March 26, 2007, for migraine headaches. If the claim remains denied, provide the Veteran and his representative with a SSOC and allow an appropriate time for response.
3. The RO should review the claims file to ensure that all the foregoing requested development is completed, and, thereafter, arrange for any additional development indicated. The RO should then readjudicate the claims on appeal. If any benefit sought remains denied, the RO should issue an appropriate SSOC (Supplemental Statement of the Case) and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).